HL Deb 28 April 1843 vol 68 cc1015-26
Lord Campbell

, in moving the second reading of the Transfer of Freehold Lands Bill, said it had frequently been made matter of objection that the charges on the transfer of lands were greater than those on the transfer of personal property. This was occasioned by the length to which the conveyance deeds ran, and the object of the present bill was by curtailing those deeds to limit the expenses. The heavy expenses attendant on investments in land deterred persons with a limited amount of capital from undertaking such investments, and the consequence was that the yeomanry of the country were restricted in number and but little likely to increase. Whilst in France the soil to a great extent was in the hands of the general population, in England it was all possessed by the great landed proprietors. The changes which had been already made in conformity with the opinions and suggestions contained in the report of the Real Property Committee, together with the abolition of leases for a year, had saved the public 150,000l. a-year. He was well aware that the alteration proposed to be effected by the bill would subject him to much obloquy, for which he was prepared; but he must confess he did not expect to be attacked in so foolish a manner as he had been. He entertained the greatest respect and esteem for the solicitors; many of them were men of the highest probity, character, and honour; but, then, some of them were so foolish—he would not say dishonest, as to apprehend that they would be entirely ruined by the proposed bill. Some of them had written him letters, others had vilified him in the newspapers, and had gone to the extent of saying that the author of the bill was a fit subject for universal execration. The deed which he proposed would be but that size. [The noble Lord presented a slip of paper about the size of a man's hand]. It was true, that if they were to be paid for the document only at so much the folio, they would be badly off, but such an idea never entered into his head. Instead of being paid by the folio, he presumed they would be remunerated in proportion to the trouble which they took, the responsibility they incurred, and the services they rendered. If solicitors were paid for the documents which they drew up in proportion to the length, it was natural to suppose that they would be exceedingly long: but where that temptation was not held out, it would be found that they would become very brief. Documents were not necessarily important in proportion to their length. The record of sentence of death was one of the most important things which could be imagined, and yet it was done in three syllables. The words were sus. per col. It was objected that if such documents were small, they would be liable to be lost. Now a bank-note for 100l. was small, but nobody objected to it as likely to be lost. [The Lord Chancellor—Nor to a turnpike ticket.] Nor to a turnpike ticket, as his noble Friend said. Solicitors were engaged in the most important transactions between man and man. It was necessary as such that they should be men of education, ability, integrity, and honour, and the services of such men ought to be amply remunerated. The objections to the bill were founded in ignorance of its object, and when they were once exposed it was to be hoped that they would be heard of no more. The principles propounded by the measure had been carried into practical operation in America, and the system had been found to work well there. He did not then see why their Lordships should hesitate to proceed on similar principles. Then as to sealing; seals were of no advantage in the present day, when every one could write; they merely served to raise doubts whether deeds were duly executed; they were of no advantage as regarded authenticating an instrument. He hoped, there fore, that seals might be dispensed with, and that if the deed were signed and attested that would be considered sufficient. With the reflecting part of the profession he believed that the principle of his bill had obtained a favourable reception. When he was at the head of the Real Property Commission, several eminent barristers were examined together with [several solicitors and country gentlemen. Mr. Justice Taunton, for one, was examined, and he strongly intimated his opinion that forms might be prescribed by act of Parliament which might materially shorten conveyances. Mr. Charles Butler, one of the most experienced conveyancers that had ever existed, also concurred that it would be highly desirable that transfer-deeds, mortgage-deeds, and marriage-settlements should be framed on Parliamentary forms which would obviate difficulties and lessen expense. He could boast of the approval of Lord Hatherton, then Mr. Littleton, of the objects which he had embodied in his bill. The form given in that bill was, he contended, not only perfectly intelligible, but it would lessen the expense of conveying land to a very great degree. He hoped, therefore, the bill would be read a second time; then he should move the commitment pro formâ, in order to have it reprinted with some alterations he wished to make, when it could be recommitted and considered in its amended shape.

The Lord Chancellor

rose to oppose the bill with regret and reluctance, knowing that it came from a noble Lord of most perfect legal education, who had had great practice, who had filled the post of first law officer of the Crown, and who had been the head of the real property commission. The truth was that this measure originated in a dilettante law reformer, who about a year ago, published a pamphlet containing the very scheme of his noble and learned Friend, and had dedicated it to Lord Campbell. The measure had, therefore, a different paternity than was generally supposed, for his noble and learned Friend would never have been the father of so ill-formed and insignificant a bantling. After the best consideration he had been able to give the subject, he was convinced that the project would be most mischievous; and he would state, as shortly as possible the reasons why he thought thus of it. His noble and learned Friend had not stated a single reason to support the bill. Why had he not done so? Because he could advance none. For his own part, he thought the very worst form that could be introduced into the practice of conveyancing, was a legislative or Parliamentary form of conveyance. If such were to be decreed, what would be the consequence? That if a departure in the slightest degree from the form of conveyance took place, the conveyance would be altogether inoperative. There were instances of this already in another act—he alluded to the Annuity Act. Hundreds of annuity deeds had come before the courts in Westminster Hall, on account of some very slight defects in deeds, which had not been strictly made out agreeably to the act mentioned. He remembered a case where it was required that the power should be signed and sealed. The party attested the sealing, and omitted the word "signing," and the transaction was declared invalid. In another case, the party attested the signing, but omitted to attest the sealing, and that was declared invalid. He remembered attending quarter sessions, and had known instances where convictions were set aside merely on account of blunders in filling up the blanks. He stated this to show how inconvenient it was to prescribe a parliamentary form for conveyances. The bill required that the instrument should be signed by the grantor and grantee in the usual mode of signature. How was that to be ascertained? That must be proved aliunde; and yet this was called a bill for the protection of poor men and their property. Then his noble Friend required the signature of two witnesses who were to subscribe the instrument, and attest it in the presence of each other, and of the principal party granting the property. The question would arise, what was the presence of the party? He recollected a case upon which he and Sir John Leach had come to a different conclusion on this point, where a will had been executed in an adjoining room. Every step you advanced introduced uncertainty, for the bill stated that if the deed was not executed in the manner prescribed the instrument should be inoperative. Another objection was the consideration. If the consideration was not correctly set out in the instrument it was declared to be altogether void. So it was under the Annuity Act, and it had given rise to innumerable difficulties. Lord Coke said that the date was an essential part of a deed, and yet it was singular that in the form which his noble Friend had given the date of the transaction did not appear; so that you were left without a knowledge of the time the instrument was executed. This form would operate to make a trustee liable for the goodness of the title; it would occasion constant doubts; nobody would be safe in purchasing without making minute and particular inquiries. No attorney or solicitor, no man of commonsense, would adopt this form of proceeding; he would not expose himself to these risks, he would convey in the common form, and the act of Parliament would become a dead letter, and not be acted upon except by a class of persons whom he was bound to describe ignorant persons, who would say, "What is more easy than to fill up these blanks?" and, therefore, every village schoolmaster would be employed to make these conveyances. The result would be, that blunders would be committed over and over again, and the poor man who purchased his estate in the confidence that he had a good title would find that he had no title at all. This would probably be the result of the measure of his noble and learned Friend, or of the Gentleman to whom he had referred. Men would make their transactions complicated—they Would cut up their property in different ways; they would endeavour to provide for every contingency and event; and the result was, that conveyances must be long, but if men would simplify their transactions, the conveyances need not be long. His noble Friend had referred to the conveyance by lease and release, and had alluded to an alteration, copied from Ireland, by which the lease was dispensed with. Nothing was more simple than the form of conveyance by release. Property might be conveyed by release in terms quite as precise as hit noble Friend had stated in his bill. He had been speaking to an eminent conveyancer, and he had given him the following form of a release:—

"Know all men by these presents, made in pursuance of the statute 4 and 5 Vic. Cap. 21, that in consideration of 250l., Thomas Smith, of Clare Hall, in the county of Middlesex, Esq., releases all that piece of land, called brick meadow, &c., unto William Thompson, of the City of London, merchant, his heirs and assigns.

(Signed) "THOS. SMITM,


"Dated 6th April.

"Received the above 250l., THOS. SMITH. There was a complete and entire conveyance. It contained fewer words than his noble and learned Friend's bill. This was what was called in law an innocent conveyance, it was a perfect conveyance. A little slip or error in drawing it would not vitiate the transaction, and it was liable to none of the objections which he bad pointed out. The conveyancers of this country had been labouring for the last ten or fifteen years most assiduously to shorten all the forms capable of being shortened; but they said, and most justly so, that if mankind would make their transactions complicated, and would endeavour to provide for every possible contingency, and for every event that could arise, the instruments used to make those provisions must of necessity be proportionate in length. He hoped he had stated sufficient to their Lordships to justify him in the doubts he entertained respecting the prudence of the measure now proposed by his noble and learned Friend. He felt so strongly the mischievous character of it, that he could not support it. He had been extremely desirous that his noble and learned Friend should put off the consideration of this question a little longer, that their Lordships might have had a fuller opportunity of conferring upon it, in order to see whether they could not graft upon this bill something better and more extensive in its character. When he asked his noble and learned Friend to postpone the second reading, stating that he expected a noble and learned Friend of theirs (Lord Brougham) to return from the continent; and, thinking that their noble and learned Friend's presence might give his noble and learned Friend some support and encouragement, not only did his noble and learned Friend refuse to wait for that noble and learned Lord's return, but he gave him a look which was most expressive, and which teemed to say— Non tali auxilio, nec defansoribus istis.

Under these circumstances, and considering that the second reading had been urged on contrary to his (the Lord Chancellor's) earnest request, he most conclude by proposing that the bill be read a second time that day six months.

Lord Langdale

said, that there were two principal causes for the present prolixity of deeds of conveyance: the first was, that the remuneration which the solictor received was proportioned to the length of the deed, and the next was, the state of the law with regard to the construction of words used in deeds. It must be obvious that professional remuneration being made to depend on the length of the document, must be an inducement to prolixity; while, with regard to the legal construction of words, the necessity was created of using a number of provisos and other clauses, for the purpose of qualifying the terms adopted. Now, how were these two causes remedied by the bill of his noble and learned Friend? For his own part, be confessed he did not find in it any provision to meet the first case—that of remuneration to the solicitors; nor was there much assistance given in respect to the construction of words. All that this bill proposed was, that when the value of the property was small, the conveyance should be short; but there was nothing in any other respect to enforce upon professional men short forms of conveyancing. He had considered this bill with a great desire to promote the object of it, but he did not believe that it would persuade any one to make deeds shorter. It was necessary in cases of wills to secure attestation in the presence of the party; but he did not think that this was necessary in deeds, and therefore be could not concur in the second paragraph, that no form should take effect unless the same were attested as herein required. It did appear to him that, in its present form, this bill was not calculated to promote the proper and laudable object which it had in view, while it could not be denied that there was great danger in prescribing by act of Parliament a form of conveyancing. When the noble Lord said he had amendments ID propose, he was in hopes that the noble Lord was going to state what those amendments were. [Lord Campbell: They would obviate every objection you have made.] But the noble Lord did not state what the clauses were. [Lord Campbell: I bad no reason to believe that the second reading would be opposed.] He thought the object of the bill could not be promoted until they removed the causes which led to the prolixity of deeds, and made correspondent alterations in the law with regard to the evidence of title, and other changes not contemplated by the bill of his noble and learned Friend.

Lord Cottenham

said, that if this bill bad appeared to him susceptible of amendment in committee he should not have been disposed to vote with his noble and learned Friend on the Woolsack, but it seemed to him that the bill was founded upon an erroneous principle. It proceeded upon the supposition that there ought to be a Parliamentary form of conveyance. This he conceived wrong in principle, and be was surprised that the author of this bill had adopted this course, because another plan might have been hit upon. If a short mode of conveyance could be agreed upon, it would obviate all the objections to which a parliamentary form was liable. It was usual in certain bills giving public companies power to purchase land, to contain a short form for the purpose, but there was this difference between the cases. In the bill he referred to it was provided the word "grant" should be used in a particular sense, and should comprise the usual covenants of a conveyance, and consequently that being established, its effect was, that the party using it did enter into the usual covenants. But although this bill sought to provide the same effect, it did not do so in the same manner. Within the last few days he had witnessed the effects of such attempts. It had happened to himself, in private matter, a few days since, to nave brought before him the fact that a deed made by a public company, according to the form prescribed by the act of Parliament, was considered so unsatisfactory that another deed in the usual legal form was made. The Parliamentary deed consisted of two skins of parchment, while the second deed consisted of no less than sixty. So that the effect of the economy sought to be made by the act of Parliament was, to cause two deeds to be made instead of one. The difficulty of proving the title might be as great in the purchase of an acre of land as in the purchase of a thousand acres, and he did not think it was expedient to incur that difficulty for the sake of saving a akin of parchment.

Lord Campbell

was extremely grieved to find that this bill was so strenuously opposed by his noble and learned Friends. He was afraid the accusation would be revived against his profession, which he had hoped was fast passing away—that legal reform could not be expected from lawyers. The present opposition came with a very ill grace from his noble and learned Friend on the Woolsack, because when he conversed with his noble and learned Friend upon the subject he gave not the slightest intimation that he would oppose the second reading of the bill; on the contrary, though he did not say he would support it, he gave him (Lord Campbell) reason to suppose that the bill would be read a second time without opposition. [The Lord Chancellor never intended to give any such intimation.] No doubt his noble and learned Friend did not intend to deceive him, but he used language by which any man might be induced to believe that the bill would be read a second time. With regard to the objections which had been urged against the bill by his two noble Friends (the Lord Chancellor and Lord Langdale), all of them would, in a great degree, be obviated by the amendments which he intended to propose in committee. His noble and learned Friend had said that this was not his own bill. He hoped he had never been in the habit of taking credit to himself for what did not belong to him.

The Lord Chancellor

begged to say he never meant to cast any imputation upon his noble and learned Friend. In stating that the bill had come from another Gentleman, he did so that he might with more confidence state his own objections to it; because he felt that it did not come with the same force of authority as it would have done had it been the bill of his noble and learned Friend himself.

Lord Campbell

certainly did, on introducing the bill, feel anxious to inform their Lordships, and was very desirous that the public should be informed, that this bill had been prepared by Mr. Stewart; but he at the same time said that he (Lord Campbell) most cordially approved of it, and most zealously supported it, and that he was of opinion that it was one which would confer great benefits upon the country. His noble and learned Friend had eulogised the system adopted in Ireland, by which the lease for a year was dispensed with, to the very great advantage of the people. Who was the author of that reform? It was the dillettante lawyer, as his noble and learned Friend had called him.

The Lord Chancellor:

I did not say a dillettante lawyer: my expression was "a dillettante reformer of the law."

Lord Campbell:

Well, that dillettante reformer of the law was one who had introduced a reform in Ireland, which, with the exception of those whose professional gains were affected by it, had been received by all persons with the greatest satisfaction. The principle of the present bill was undoubtedly that of a Parliamentary form, and if Parliament could not provide that remedy for the evil complained of it ought certainly to be opposed. His noble and learned Friend had read a form which he said would operate extremely well, but when would it be adopted? He would ask his noble and learned Friend if he had ever seen a deed that was not ten or twenty times the length. If not, showing that such a deed might be adopted was of no service, because no lawyer would take upon himself the responsibility of using it without an act of Parliament, and indeed could not afford to do so on the principle of remuneration now adopted. If, however, such a form were provided by the Legislature, there would be the argumentum ad vere-cundiam, and the client might ask if there were not an act of Parliament which rendered such prolixity unnecessary. There were parts of this bill which might be dangerous, and which he had intended to strike out; but certainly a form might be provided free from all the objections stated by his noble and learned Friend. He had intended to strike out all incapacitating words, and all words that required a particular form of attestation, and to leave it to be attested like any other instrument. With respect to other objections, the Stamp Act at present voided a deed unless the consideration money were truly stated; and as to the parties, even as the bill stood at present, both the grantor and trustee could execute the deed as grantors. His noble and learned Friend said that ignorant and unlearned persons would fill up this form, but it had been framed for that purpose—[Lord Chancellor: "Hear,"] although he should have had no objection, though certainly not for their sakes, to provide that they should be prepared only by an attorney or conveyancer. Under these circumstances he hoped his noble and learned Friend would not oppose the second reading. If he objected to the form it could be amended, and if he should still object to it he would still have sufficient influence to induce their Lordships to reject it, but he would use that influence very harshly if he caused it to be thrown out in this shape. If he did so on his noble and learned Friend be the responsibility. He had brought forward a measure which, in his conscience, he believed would be a great public benefit; and if his noble and learned Friend should crush it, though he might be applauded by attorneys and conveyancers, he very much doubted whether he would also receive the approbation of the public.

The Lord Chancellor

had no doubt that his noble and learned Friend brought forward his bill from the best possible motive, and he hoped his noble and learned Friend would believe that the opposition to it was also made from conscientious motives. His noble and learned Friend had said, that his (the Lord Chancellor's) objections were merely as to details; but on the contrary, he opposed it upon principle. He objected to it on the ground that it made a strict adherence to a Parliamentary form necessary. If his noble and learned Friend had amendments to make, it was quite open to him to bring in another bill founded upon those amendments.

The Duke of Wellington

entirely concurred in the opinion just expressed by his noble and learned Friend, It appeared to be generally admitted by all the noble and learned Lords who had spoken, and even by the noble and learned Lord himself, that this bill was defective. The noble and learned Lord himself stated, that it required many amendments; and the principle of the bill having been objected to by his noble and learned Friend on the woolsack, and his noble and learned Friend who had preceded him in that station, and also the noble and learned Lord the Master of the Rolls, he, under these circumstances, thought it became their Lordships to vote for the amendment of his noble and learned Friend (the Lord Chancellor); more particularly as the noble and learned Lord had the opportunity of introducing a perfect bill for discussion in the present Session.

Lord Campbell

said, that if the bill should be thrown; out because it was defective in detail, it would be adopting a course wholly new and very unparliamentary, and, as he conceived, very inexpedient, because it could not be reasonably expected that any measure when first introduced should be in a perfect form. But if it could be amended, and made beneficial to the public it ought to be allowed to proceed to that stage in which the amendments could be made. He (Lord Campbell) had done his best. He had brought forward a bill, after great deliberation, which he believed would, if adopted, be greatly beneficial to the country. But, if their Lordships were of a different opinion, he must submit to their authority. If this measure should be thrown out, he should give up, in despair, any attempt to remedy the great evils that at present existed in the law relating to the conveyance of landed property.

The Duke of Wellington

must explain. The noble and learned Lord had said, that the bill was objected to in its details. Now, what he (the Duke of Wellington) distinctly stated was, that the bill was objected to on its principle by three noble and learned Lords, and that, being objected to upon its principle, this was the time at which it ought to be rejected. But if the noble and learned Lord should think proper to bring in a measure upon the subject, by withdrawing his present motion he might do so. It was for the noble and learned Lord to determine whether he would bring in another measure unobjectionable in principle, and perfect in its details. Let him do so, and then their Lordships could discuss it.

The question was put that the word "now" stand part of the question, and it was decided in the negative. Bill put off for six months and the amendment agreed to.

The bill was consequently lost.

Adjourned at a quarter-past seven.